23 June 2011

The sound of money

There's a fable that is told in many different versions around the world. In some European versions the hero is a wandering clown, but in the version I first read as a boy it was Ōoka Tadasuke, the 18th century Japanese magistrate who has many folktales attached to him. The story goes: an innkeeper overhears a poor student tell a friend that he always eats his rice as the innkeeper is preparing his fish, and thus the smell improves his meal. The angry innkeeper brings the student before Ōoka, demanding payment for the stolen smell. Ōoka responds by having the student spill his pocketful of coins from one hand to another, and tells the innkeeper that the smell of fish has been repaid by the sound of money.

The popularity of this story speaks to a deep, common-sense understanding that there are some things of value that are beyond commerce. The value of these things lies in part to their having no ownership, to the way they float in the air, literally or figuratively. Unfortunately, this doesn't mean that indignant, entitled, or greedy individuals won't try to assert their claim.

Making the Internet rounds today is this disturbing piece on Waxy.org. Andy Baio, a tech enthusiast, made a series of chiptune versions of Miles Davis's tunes on Kind of Blue; when he distributed the files, he included a version of the Kind of Blue cover that had been highly pixelated. The original photographer of the Davis portrait, Jay Maisel, sued Baio for copyright infringement. The case settled out of court for $32K.

I'm not going to go into the legal issue here—I have strong feelings about the stupidity of the current state of intellectual property law and I'll bore you all some other time—but I do think that the story poses the question, what motivates an artist to take such disproportionate and vindictive action against a fan? It's not money—Mr. Maisel is one of the most successful commercial photographers in the world. In Baio's account, he quotes Maisel's lawyer:

"He is a purist when it comes to his photography," his lawyer wrote. "With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission […]"

With all due respect, I'm certain I can't understand how Maisel's hurt feelings are worth $32K. What's being referenced here is the noxious concept of Moral Rights, the idea that an artist's right to preserve the integrity of a piece of work can and should prevent anyone else from editing them in any way—including, apparently, using the original work as a springboard for something new. The American system of copyright does not, in fact, recognize Moral Rights (it's mostly concerned with people getting paid), but the romantic ideal that somehow the artist's intent should trump future artists' intent forever and ever is anti-Art. Everything is derivative. That's the way culture happens.

I make a part of my living as a designer and illustrator. I have used existing works of art as inspiration, as reference material, as grist for the mill. Maybe some other artists have taken bits and pieces from what I've done and made something new. I don't know of transformative works, but I have found places where my art was used unaltered without attribution or payment. If someone were to use one of my illustrations commercially, I would ask for payment; if they were to use it in a way I found offensive, I would ask them to stop.

But really? Most of the time, it just makes me smile—because I know my work is floating out there along with all the other smells.

39 comments:

For what it's worth, it's unfair to refer to the Kind of Bloop cover as "pixelated." It would be more accurate to say the Kind of Bloop cover was an artist's interpretation of the original photo in a pixelated style.

I think that he stole an owned image, created by an artist, without the artists permission.

His pixelated result is just a low res version of the original high res version. It is presented in the exact aspect, not even cropped differently. It is not included as a part of a different work. it is copyrighted material, and the pixilator made a mistake.

ijak, you don't know what you're talking about. Take a look at Jason's image link and see for yourself that it's not just a pixelated image. Rather, it was redone in that style as a tribute. It is thus definitely a different work.

This guy deserves his work being plastered all around China without being paid a cent for it. It's easy to pick on the little guy, but let's see if can try "being a purist" internationally where his lawyers can only go so far.

1. The image in question was traced from the original photo. You can verify this by superimposing the pixel art image over the original. This can be done in about 1/2 an hour. It's trivial to downres an image and trace over it in Photoshop with the pencil tool at 100% Opacity.

30 minutes work is not enough of a translation to invalidate a copyright, otherwise I could just apply this treatment to any image I want and start selling prints.

2. Jay Maisel is a professional photographer. This means that money from licencing photos is his sole source of income. If someone screws with your livelihood, you sue them or you're foolish. Why should Maisel establish a precedent that you can just rip his work with no consequences? Do you realize the kind of floodgates that precedent would throw open?

The net commentary on this issue has been disgusting and foolish. Andy Baio is a great guy and he deserves the love that people have for him, but in this situation he was clearly wrong. He knew enough to license the music, didn't even bother with a phone call to license the artwork based on an amateur's naive interpretation of 'fair use', and got burned.

None of you have any information about Maisel's personal finances and the idea that because he's successful he shouldn't defend his copyright is so foolish it doesn't even merit rebuttal.

(1) Should Jay Maisel have just shrugged and not moved to defend his copyright? IncredulousHulk's response immediately above deals with this, and I agree with his take. That perhaps he could have gone about it differently, more gently, I don't know, that's a different debate.

(2) Is the work derivative rather than transformational? I'm aware via commentary here and on Andy Baio's site that it is not simply a downsampling of the original, that it had to be created as its own work. But even given that it doesn't strike me as transformational. It strikes me as what it looks like: a downsampling of the original. It may not be that, it may have taken great care to produce, but that's still what it looks like to me.

No @increduloushulk, it wasn't traced from the original photo. How it was done has been well-documented by Baio and others, including in comments prior to yours.

Nor did Baio "screw with his livelihood." Maisel didn't lose a single photo sale because of the cover.

As has also been mentioned elsewhere, all Maisel had to do was pick up the phone and say, "Hey, that's cute, but I think it's a little too close to the line, so please pull it." Baio changes the cover and there's no story.

To sue Baio for the $ specified, and to demand $32K as a settlement is worthy of all the excoriation Maisel has received and more. And that is the story; we're only talking about whether it's a derivative work because Maisel was a &%*#.

Increduloushulk, what is an "amateur's naive interpretation of 'fair use'"? If Andy was an amateur, who's the professional of fair use-- the artist, lawyer, or judge?

Of all transformative works uncontested or legally deemed fair use by a court of law, in how many cases did the artist call up the original artist and say "hey, i'm going to create a work very much like yours, but transformative enough to be legally considered fair use-- is that cool with you?" Probably not many.

Maisel certainly has a right to defend his work, but it's a shame the power balance is such that Andy is unable to equally defend his. We don't get to know legally whether it was fair use, and the settlement seems overly harsh in relation to the alleged crime.

If you superimpose the two images, all of the details line up exactly. It was plainly traced.

As far as losing photo sales goes: you have no way of knowing how allowing unauthorized reproductions of Maisel's work to be used for commercial purposes would affect Maisel's licensing fees.

He is a famous photographer and as such I'm sure infringement cases pop up on a constant basis for him like a Whack-a-Mole game, and he shouldn't have to sit there and stroke his chin over every single case to decide if that person is a nice hobbyist or an evil infringer.

I'm sure those people selling unauthorized merch with his images on them in Hong Kong are perfectly nice too, and they probably need the money a lot more than Andy Baio, but evaluating each case after the fact shouldn't be his responsibility.

He certainly shouldn't have to play some guessing game about any given commercial product's financial success before deciding if he needs to sue or not.

And without question, he shouldn't have to be paying his lawyers out of his own pocket to ask people nicely to quit selling his work after they've already started doing so.

This is infringement case #58376 for him, not 'How can I destroy internet fun and screw Andy Baio?'

To your third point - all Baio had to do was pick up the phone to ask permission to use the images and this whole thing would have been avoided. He made an (incorrect) judgment that he didn't have the legal requirement to do so. Baio based this decision on his bad amateur interpretation of the law, and not any kind of ethical criteria, and it backfired. It's disingenuous to suddenly pull out the ethical/moral card when he was acting based solely legal rights that he didn't actually have.

As far as the settlement amount goes - Maisel wants to deter infringers and pay his lawyers for the time spent on the case and to protect his copyright in general.

None of us have any idea what that costs and therefore have no basis to criticize him based on the amount. For all we know, Baio could be responsible for wasting dozens of billable hours arguing fair use, in which case the $32k probably covers legal fees and whatever royalties Maisel needs to pay out to the Davis estate or whoever else.

As far as asking for a simple takedown, that tells any other potential infringer that they can go ahead and rip Maisel's images off and as long as they don't make a fortune off it he'll just ask them to stop.

I haven't heard a single well-considered argument from the "Maisel is a d!ck" crowd at all.

IncredulousHulk, thanks for your comments. Could you please provide a link to your portfolio so that we can establish your bona fides and not some random person talking a big mouth full of shit on the web?

Once that's established then I have some questions for you regarding proportion and relations in a drawing where the drawing would seem to "capture" the primary source. Like those paintings, drawing and such that can be seen in museums and galleries. Thanks!

An issue I don't see vary many touching on is that there seems to be a big difference, legally, between doing art and commercial work. There have been several good examples of this, where courts and settlements have limited artists use of an artwork due to it being based on someone elses work.

If I have been understanding this case correctly, limiting Baios use of the work to non-commercial, artistic use only was too late when Maisel's attorneys discovered Kind of Bloop. It had already been used commercially to sell a product. $8,647 had been made via Kickstarter already, with plans to make more. A quite obvious case to pursue if you are a copyright lawyer.

Increduloushulk:"he was acting based solely legal rights that he didn't actually have"

Perhaps 'actually' isn't the right word here - we won't ever 'actually' know because this case was settled out of court and therefore isn't going to be adjudicated by the person with real authority to decide who had the rights - a judge.

It cuts both ways - Baio thought it was fair use, Maisel didn't. We don't know, and likely will never know who is right here. So in the same way you say Baio should've asked, then surely Maisel should've asked too?

Your point about 'telling other infringers' is interesting as well, but perhaps not relevant. If he did act politely, then this whole story could never have existed and therefore no message would be sent to anyone but Baio.

The problem here is not so much who is right or wrong (although your posts make it sound very much like you believe Maisel is right and Baio is wrong, which we absolutely don't know). The problem is the party #1 exercised their legal muscle to beat party #2 solely because party #2 didn't have an equivalent defence. It's not a very pleasant or gentlemanly way of going about business, and that has understandably upset the internet.

@increduloushulk I've heard several arguments that I think are well-considered, but I suspect your bar of consideration is set differently to mine. Let's start here:

Is Andy Warhol's Marilyn (well, any one of the first series of eight) a transformative work? He obtained a 20th Century Fox Studios publicity shot of Monroe, then cropped, enlarged, coloured and silkscreened onto canvas. From your "30 minutes work is not enough of a translation to invalidate a copyright, otherwise I could just apply this treatment to any image I want and start selling prints" rationale, it would appear you don't think so, because Warhol's treatment of the image could quite probably be done in that amount of time (albeit with the appropriate tools available to him in the 1960s). Yet versions of Marilyn hang in the finest galleries throughout the world, are widely considered masterpieces and are worth tens of millions of dollars. Should 20th Century Fox (or whomever owned the photo's copyright) have sued him into oblivion and stopped his use of the image? You seem to be saying that it would've been morally and ethically right for them to so. Do you really consider the amount of time it takes to make something different to be a primary factor in determining if it's transformative?

Then there's the context. Maisel's photograph is undoubtedly iconic: everyone knows it if they know 'A Kind of Blue' and it's quite possibly the single image most people think of when you say 'Miles Davis.' Does this not adjust the parameters of what it takes to make a transformative work of it? In which direction? To my mind, this would lower the amount of transformation required. If this were considered true, it would then still be possible to argue that Shepard Fairey's Obama was *not* significantly transformative, because the image he appropriated (taken by Mannie Garcia), was not iconic or widely recognisable; but Baio's friend's alteration of Maisel's photo *would* be considered transformative as the photo is iconic.

How about uniqueness? If anyone of reasonable skill could do it and produce an _identical_ result, such as by downscaling in Photoshop or running posterise, then there'd be an argument there, but when it's hand-created - not auto-generated with a filter - does that really stand up? Your statement "If you superimpose the two images, all of the details line up exactly. It was plainly traced." is nonsense, even a cursory glance reveals that the jacket and shirt in the bottom left, as well as the tie's pattern, do not line up exactly. The image was very likely used as a basis, but it is *not* a simple downscale and posterisation.

I think you positing that it's a trivial work and therefore not transformative is a fair argument, but isn't half as clear cut as you make it out to be, and I happen to disagree with it. The problem is, this argument hasn't - and likely will never - be decided conclusively in a court of law, because Maisel's rich and can afford strong legal council and Baio can't, so settled for $32,000 while denying any liability, which makes your dismissal of economic factors slightly perplexing. Using lawyers to bludgeon someone with a potentially valid case, rather than trying to resolve it amicably without immediately threatening to sue makes you a dick, generally speaking.

@jperkins There's no need for ad hominem attacks of IncredulousHulk. Attack his arguments, by all means, but please don't question his character, it's baseless and unfair.

@jperkins: Given the language you used in your post, I suspect you're not interested in having a reasonable discussion about copyright. I hope you'll forgive me if I'm reluctant to invite harassment by providing a link to my portfolio.

@trickartt: As far as whether the issue would have come down in Baio's favor had it gone to court, recent decisions against artists Richard Prince and Mr Brainwash, as well as the settlement between Shepard Fairey and the AP strongly suggest otherwise.

I understand that many feel it would have been nice for Maisel to request a takedown first, but again, that undermines his ability to deter infringers who are acting in bad faith. If it becomes known that Maisel is reluctant to sue, there's no reason not to make whatever money they can and then comply with the takedown notice.

Again, the onus is on the one producing the derivative work - this is one instance where it is definitely NOT better to ask forgiveness than permission.

As for who is right... I'm strongly arguing Maisel's side because I find the internet lynch mob thing really ugly. There doesn't seem to be anybody taking the opposing position in an issue that is much, much more complicated than the current discourse reflects. @danielpunkass said on Twitter that if it was Sony instead of Andy Baio that Maisel was suing, everyone would be siding with Jay Maisel, and I think that's completely true. I think it's an important point. Though everyone with a heart has sympathy for the little guy, and Andy Baio is a great guy, that doesn't mean he's right in this case.

Additionally, I find the hypocrisy among the web crowd astounding - a group that loves outing people for ripping off web and logo designs thinks it's fine to take people's photographs. I don't think people have any comprehension of the level of skill involved in producing world class photography, let alone using the equipment and processes available in the 1950s when this image was produced.

I think Andy Baio acted in good faith and was naive about the value of images vs songs, and it would have been great if it had ended with a lesson learned and no harm done. I think he does valuable work and I'm glad people are buying his album to help defray his costs - but there are lots of unknowns and the rush to judge Maisel has been really disappointing.

Unfortunately, I think his case is completely undermined by the fact that he sought to pay licencing for the music and didn't bother for the art. When asked why he didn't license the art as well, he said "I don't need to. It's fair use." Invoking a legal defense without the means to actually defend it is incredibly foolish, especially when recent cases have gone against the producer of the derivative work. To my mind his dismissal of any need to license the image shows a real disrespect for the efforts of the photographer as opposed to the efforts of the musician.

That photo is the centerpiece of Jay Maisel's career. If it's legal to trace over it and sell the reproductions, then it's legal to make silkscreens from it and use that to sell t-shirts or posters - the transformation is very similar. People who are arguing fair use in this case are arguing that those who produce images should not have legal protection from those who want to sell their work without permission or compensation. As one who produces images myself, that's why I'm arguing the other side in all this.

@maxstef: Regarding Andy Warhol - his work was produced when painting as fine art still held a very high level of cultural cachet, immediately after the famous (infamous?) abstract expressionists there was suddenly an artist producing recognizable images again, and it was considered a huge honor for the subjects of his paintings. Fox and Campbell's Soup both profited a great deal from the publicity that Warhol's work gave them, and they would have been foolish had they sued him for damages. If Warhol had been producing soup and selling it with his own hand drawn labels instead of oil paintings, I suspect they would have taken a much dimmer view of it.

I believe, though, that one of the photographers whose work he used did actually sue him and ended up getting several Warhol originals in compensation - an enormous payout. I don't have any references for this but if you'd like to research it and post what you find I think that would be interesting.

That said, it's not at all clear that Warhol could produce those works today without any trouble - with the collapse of industrial production in the West and the rise of brand-as-product, corporations are much more sensitive now about intellectual property issues.

It seems to me that there is a big problem when people understand that music needs to be licensed - even in transformative situations, but they don't have the same respect for photography. Mr. Baio covered his bases for the music but didn't think it was necessary for the photography. Why not? As a photographer I find this to be disheartening.

I may have misunderstood, but when I read US copyright law,it seemed pretty clear to me that a take down notice is legally required *before* you can take legal action. The offending party needs to be given a fair chance to repair the offence before a judge and jury gets involved. The point of having a lawsuit is to deal with the situation when the offending party *refuses* to take reparative action.

in this case, Maisel may have felt that he deserved damages for lost profit. It doesn't seem clear to me though, that Andy Baio had even made 32k of profit off Kind of Bloop, let alone some larger amount of which 32k could be said to be Maisel's fair share.

@speckmayor yes, the problem is that the record industry is *well known* to be highly litigious, whereas photographers simply don't get that same level of publicity for their actions, most of the time. It's not an issue of respect, it's an issue of staying out of trouble.

Takedown notices are a specific tool created by the Digital Millennium Copyright Act to create a distinction between content hosts and publishers of original works. Baio's clearly publishing an original work; takedown notices would not be required.

@Ijak "His pixelated result is just a low res version of the original high res version. It is presented in the exact aspect, not even cropped differently. "

It's not a low res version, it's a re-interpretation of the original *album art*. (Look at the tie.) I'll bet dollars to doughnuts that the original print isn't square, so the cropping decision wouldn't be Maisel's.

The reason Waxy settled isn't because he isn't *right*, but that proving that in court would *still* be more expensive than settling.

@DCL maybe I used the wrong language. What I remember reading is that it must be demonstrated that a reasonable effort was taken to settle the issue out of court before you can bring it into a court case.

Transformation or substantial change is not enough, according to the law. You cannot use a photo like this, whether it's traced, or down-rezd or imitated with Illustrator. It is clearly Maisel's work.

The problem is so complex, the simplistic arguments here are less than meaningless. But the bottom line is that Baio admitted he made a mistake thinking he didn't need to ask permission. Maisel was wrong to not contact him and ask for a reasonable payment for the use. He's been a pro since the 50s. He knows how the business works. (As I do, having been a photo editor for over 12 years and a photographer for 25).

Maisel was obviously asking for so much money that he knew Baio would settle if he had any brains at all. He does, obviously. (And for the record, I bought the album to support him.) Maisel has to defend his work every time he can, because courts will later deny him the right to sue if he doesn't do due diligence in every case he possibly can. So that kid of rules out the idea of "choosing your fights." And that's unfortunate.

In the end, Maisel might have even given him the license for a pittance when he new the album is a tribute to Miles Davis. Or if Baio is going to sell it, he could have cut Maisel a tiny percentage of the profits.

There was a reasonable way to go about this, but unfortunately because of the legal system, and because Maisel is obligated to protect his work or the courts will take away that protection, it ended up this way.

If I was a member of the jury in this case, I would have ruled for Maisel, but I would have given him $1 or one percent of the profits.

Yes, I read his own words admitting that it was a mistake assuming he didn't have to ask permission to use the photo. The law is clear on that. There have been many rulings, and yet the myth persist that if you modify an image a certain percentage, you're save. In fact, you are not. Copying is no different than modifying.

But as I said, it was a minor mistake, and the law came down on him way too hard. Especially considering the spirit of his project.

May I humbly submit the suggestion that the licensing of the songs but not the photograph says nothing about the relative respect to be granted each art form, and rather make sense on practical grounds: that we expect large corporations driven primarily by a profit motive (a structure that seems to grow only increasingly amoral) to act like a litigous asshole regardless of the case's merit, whereas we do not generally expect such from individual persons so much. Especially not from artists.